Holding a second disciplinary enquiry – An attempt for justice, or double jeopardy?
Enforcing discipline in the workplace requires, in essence, the balancing of legitimate interests.
It is the employer’s duty and prerogative to ensure and maintain disciplined behaviour in the workplace. This, in turn, will enhance labour peace, provide job security for those who dutifully toe the line, ensure optimal productivity, and ultimately create an environment conducive of prosperity for all.
Going about enforcing discipline however has to be fair in fact and in perception and aimed at achieving the objectives mentioned above. The fact and the perception of fairness have to be from both the perspective of the employee and that of the employer.
What I described above is the ideal situation, but then, we do not live and operate in a perfect world. Human error, will, like the poor, always form part of our daily experiences and the enforcement of discipline is no exception.
The balancing scale of fairness regarding the enforcement of discipline is designed in such a way that, to level off, it requires a bit more consideration and circumspect from the employer as the stronger and less vulnerable party in the relationship, than is required from the employee.
Essentially, this implies that the employer ideally has to do it right the first time, with the benefit of resources to its disposal. Enforcing discipline and exercising the powers vested in line management to fulfil this duty comes with exactly this obligation.
The norm, as far as far as disciplinary decisions are concerned, was well-expressed in the CCMA case: Frost v Telkom South Africa (2001), and I quote: “The norm in assessing the fairness of a disciplinary offence is a single disciplinary enquiry, conducted in compliance with the employer’s disciplinary code. Where there has been compliance with the employer’s disciplinary code, and the first enquiry adequately canvassed the facts involved, it will be unfair to hold a second enquiry” (my emphasis).
When it so happens that a second disciplinary hearing or enquiry is held based on the very same transgressions allegedly committed, it amounts to an unfair labour practice termed “double jeopardy”.
The double jeopardy rule means that an employee cannot be subjected to a second disciplinary enquiry after he/she has been acquitted after the first enquiry. This may even apply where the employer is not satisfied with the sanction imposed in a disciplinary case and wants to impose a more severe sanction.
The jurisprudence regarding the holding of a second disciplinary enquiry however revealed that there is no absolute prohibition on the holding of a second enquiry. It is permissible where the legitimate interests of fairness and justice could be served by it. This is however not an avenue which is easily accessible to the employer to do “damage control”, as it still holds the employer accountable to have conducted the enforcement of discipline in the first instance in a responsible and well-thought-through manner, as a prerequisite. Legal certainty is and remains of paramount importance regarding the creation of legitimate perceptions of fairness in the workplace.
What is to be learned from Labour Appeal Court (LAC) cases regarding the legitimate and fair conducting of a second disciplinary enquiry?
On specific request, I will gladly give a more detailed account of what the two LAC cases below were about, but for the sake of brevity, I will deal with it in truncated format.
- BMW South Africa (Pty) Ltd v Van Der Walt (2000)
The employee was submitted to a disciplinary enquiry regarding the unauthorised removal of company equipment and based on what was placed before the presiding officer the employee was only found guilty of misrepresentation. Considering mitigating circumstances, no sanction was imposed. When vital new relevant evidence subsequently became available, which was consciously concealed by the employee during the initial disciplinary enquiry, a second enquiry was held, and the employee was dismissed.
The employee disputed the fairness of his dismissal on the basis of double jeopardy and the then Industrial Court (IC) held that the conducting of the second enquiry was unfair, which prompted BMW to appeal to the LAC. The LAC found that the dismissal in consequence of the second enquiry was fair in the circumstances. The judge however, made a cautionary remark obiter (in passing), pointing out that the holding of a second hearing or enquiry could be ultra vires (beyond the legal authority) the employer’s disciplinary code or policy and thus could be unfair if not based on exceptional circumstances existing.
Upon realising the full extent of the employee’s deception, the employer lost all confidence in the employee. This being the case, the court held that it would be unfair to expect an employer to retain an employee in whom it, justifiably, lost all confidence, hence the dismissal in consequence of the second disciplinary hearing, was found to be fair.
- Vital information was withheld by the employee in the first hearing, justifying a second hearing.
- This vital information only came to light after the first hearing, constituting new, relevant information.
- The nature of the new information is such that it had a profound aggravating effect on the gravity of the offence.
- The employee was subjected to a second hearing where he could participate in and challenge the allegations against him (due application of the audi alteram partem principle).
- It is advisable to ensure that the disciplinary policy caters for the eventuality of a second disciplinary hearing, provided that there are prevailing exceptional circumstances.
- Branford v Metrorail Services (Durban) & others (2003) LAC
The employee was accused of fraudulent petty cash claims totalling R834.00 and with all relevant information to the knowledge and disposal of his line manager, the production manager and a senior manager in the finance department, the employee was given a verbal warning by his line manager in the presence of the other two officials mentioned.
Following a subsequent internal audit carried out, the employee was however subjected to a second disciplinary hearing and dismissed for fraud, forgery, and dishonesty. The employee eventually referred the matter to arbitration under the auspices of the Bargaining Council concerned. The arbitrator found for the employee and ordered the latter’s reinstatement. The employer took the arbitrator’s award on review to the Labour Court, which court granted the relief sought by the employer in setting aside the arbitrator’s award.
The employee then approached the LAC for relief. The LAC rejected the Labour Court’s findings, also pointing out that the auditor’s findings merely confirmed which was already known and brought no new evidence to the table. The court also noted that the relative informality with which the first disciplinary enquiry was conducted, resulting in the verbal warning, does not make it pro non scripto (to be ignored as if not existing).
The appeal was upheld, and the Labour Court’s order was set aside, and the arbitrator’s finding endorsed.
Where the employer had all relevant information to its disposal when taking a disciplinary decision and implementing it, a second disciplinary hearing will generally be unfair (refer to the principle extracted from Frost v Telkom SA).
Some useful general guidelines
The CCMA case: Solidarity obo Pienaar / Harmony Gold mine Ltd (2011) provided some useful guidelines to consider when contemplating holding a second disciplinary hearing:
- Consider whether the 1st hearing have been conducted in good faith and the presiding officer considered all the evidence put before him/her.
- Consider whether the presiding officer in the 1st hearing had the authority to take a final and binding decision or merely made a recommendation regarding the sanction to be imposed.
- Consider whether the 1st hearing was conducted in accordance with the employer’s disciplinary policy.
- Consider whether the employer acted in good faith when deciding to hold a 2nd
- Consider whether the 2nd hearing was provided for in the employer’s disciplinary policy.
- Consider whether the 2nd enquiry was conducted with due observance of the principles of natural justice.
- Consider whether factors were considered in the 2nd hearing which the employee did not have the opportunity to answer to.
- Consider whether and in what circumstances new and relevant information came to light after the 1st
- Consider the duration of time between the 1st and 2nd
- Consider the gravity of the employee’s offence (all evidence considered).
- Consider the extent to which the penalty that was imposed in the 1st hearing was out of kilter with the sanction prescribed by the disciplinary code and those sanctions actually imposed in practice for the particular offence.
- Consider whether the finding imposed in the 1st hearing was supported by the evidence.
Further to the second bullet point above, there is obviously no “2nd hearing” at play where the presiding officer in the 1st hearing merely made a recommendation to line management regarding the sanction to be imposed, leaving it to line management to take an informed decision regarding guilt and sanction – line management pronouncing on the actual outcome in consequence of the recommendation received (not being bound by it) does not constitute a “2nd hearing”, but is a finalisation of the 1st hearing.
Subjecting an employee to a second disciplinary hearing can be regarded as justified in the circumstances or it may amount to “double jeopardy” and thus be unfair. That much have we learned from the case law eluded to above.
While the (weaker) employee party has the liberty to dispute a disciplinary finding through the internal disciplinary process by way of an appeal or a review (where such are provided for) or, alternatively, refer a dispute to the CCMA or Bargaining Council and possibly also to the labour courts for relief, the employer does not have this opportunity. The employer cannot be seen to be divided in itself, challenging its own decisions.
This being the case, employers would be wise to invest in the proper training of its line management in order to equip them to conduct disciplinary matters in a procedurally and substantively responsible, fair and equitable manner, thereby avoiding the need for second-guessing and questioning the correctness of disciplinary decisions taken.